Monday, October 11, 2004

I never thought I'd ever write anything in support of that bitch Judith Miller, but here goes. She finds herself in a spotofbother with the courts. Apparently the still unnamed Bush Administration official who illegally leaked the name of Valerie Plame also talked to Judith Miller. Miller didn't write about it, but has been hauled before the court to disclose the name. She has refused, claiming that her informant is a confidential source, and thus she as a journalist does not have to reveal the name, and will continue to protect her sources. The court disagrees that she has the right to conceal the name of the source, and has found her in contempt. The issue will no doubt be determined on appeal. Miller is a totally disgreeable character, having just provided much of the incorrect propaganda basis that the Bush Administration used to wage the illegal and immoral attack on Iraq, and all decent people would bring marshmallows if Miller were burned at the stake. It is also highly enjoyable to see Miller hoist on her own petard, the use of anonymous government sources being her main technique at spreading the disinformation that led to war. However, seeing Miller punished for not revealing her source is very troubling (her co-conspirators at deceiving the American people into war are also troubled). There are a number of arguments you could make for why Miller should be forced to reveal her source, but I have problems with all of them:

You could argue that the right not to reveal the source doesn't apply because she didn't actually write about the matter. That won't work because journalists usually don't write about matters that they hear about from confidential sources. Most such sources are cranks, or have information that is credible but cannot be verified. The fact that Miller didn't write about this matter is irrelevant to the main issue, which is ensuring that people whose position means they cannot speak publicly, because they would lose their jobs or would break a secrecy statute that ought to be broken, still have a possible voice if they have important information.

You could argue that the right not to reveal the source doesn't apply because the leaker was breaking a specific statutory provision in even talking to her, so that she was simply a witness to a crime. The problem with that argument is that it would essentially stop whistleblowing. Especially these days, in the world of the 'war on terror' and the Patriot Act, revealing just about any information is probably illegal in some way. Secrecy freaks like the Bush Administration are trying to plug every possible hole. The precedent set by Miller's jailing would apply not just to this particular provision, but to the general right of journalists to protect their sources.

You could argue that the right not to reveal the source doesn't apply as the source in this case was attempting to stifle critics of the Bush Administration by punishing Joseph Wilson by punishing his wife. In other words, the intent of the leaker was to stop whistleblowing. This is certainly true, but a court isn't going to be able to make that finding of fact, or make that fine a distinction. In fact, the motive of the whistleblower is irrelevant to the issue of whether the publication of the information he or she has is for the greater good.

I detect a set-up here. As Miller is so thoroughly disliked, no one is going to run to her defense. Those who might be inclined to defend her are also interested in the partisan political matter of obtaining the name of the leaker. On the other hand, the Powers That Be will not hesitate to throw even their most cravenly loyal retainers to the wolves if it should serve some purpose (just ask Dan Rather). This is thus the perfect test case to make some bad law. The Bush Administration is notoriously interested in secrecy, and a precedent that would mean a journalist could be jailed for not revealing a source is just the kind of stifling of whistleblowing that they would be love to see. What whistleblower would even dare contact a journalist if he or she knew that the journalist could be compelled under penalty of jail to reveal the whistleblower's name? American democracy is hanging by a slim thread, and that thread is the First Amendment. Despite all the mangling of the Constitution performed by the Bush Administration, the First Amendment has held up remarkably well, which is why we know so much about what they have been up to (although we'd all still like to hear from some whistleblowers at NORAD and the FAA about just what was happening on September 11). Almost all leaking is probably in breach of some law or other (in these post-Patriot Act days practically everything is in breach of some law or other). If Miller goes to jail, the precedent will be set to finish off the possibility of whistleblowing, unless the whistleblower is prepared to lose his or her career and go to jail. Under such circumstances, would Seymour Hersh have heard about Abu Gharaib? My Lai? Would the Pentagon Papers have been published? Actually, they probably would have been, but only because Daniel Ellsberg was prepared to risk the consequences, something most whistleblowers are naturally not prepared to do. This is dangerous territory to be setting such a precedent. The United States now needs the full force of the First Amendment more than ever.

The statute in question appears to have been specifically drafted to protect the right of journalists to write about what they discover. By using a court demand to turn over the name of the informant backed up with a jail term for contempt of court for failure to comply, the courts would be effectively removing this protection for journalism. The intent of the statute is undermined by this roundabout way of getting at the whistleblower. There has been much pious handwringing from the Democrats about the fate of poor Valerie Plame, but we have to put this into non-partisan perspective. The 'cult of intelligence' tends to make us think of the rights of the CIA as paramount. Especially in these days of the 'war on terror', there is even suggestions that Plame's naming made the country less safe. Get a grip! Has the CIA ever made anyone safer? Even if the names of these people are actually worth protecting - and I don't believe they are - there are other values at stake. Is protecting these names by a convoluted attack at journalists worth sacrificing the protections of the First Amendment? Michael Kinsley thinks that protecting the name of CIA agents is more (or here) important. I don't. Which makes Americans safer, the CIA or the First Amendment?

There is an odd subtext here which I don't really understand. The prosecutors have been receiving information about sources from journalists by having the sources sign waivers. By the process of elimination, the prosecutors must know who the leaker is. He's the guy who hasn't signed a waiver! So why are they making such a big deal of forcing Miller to reveal a name they already know? Here is where we start to enter the strange world of conspiracy theory.

Robert Novak, the guy who actually wrote the article that outed Plame, and the guy you would think the prosecutors would be after, has been strangely absent from this whole story. This is where I get very suspicious. Not only is he absent, he is in Florida where the story goes that he broke his hip. Thus he is very conveniently incommunicado. Despite this, he is still able to write columns. For a septuagenarian, for whom a broken hip is very serious business, this is a miraculous recovery. It reminds me of septuagenarian Grand Ayatollah Ali Sistani, who allegedly had heart surgery in London, and almost immediately made the plane trip back to Iraq, hopped in a convoy of trucks, and drove across the desert to negotiate the salvation of Najaf. I'd be very surprised if Sistani had heart surgery, and very surprised if Novak broke his hip. In the good old days, the way you avoided a politically unhelpful subpoena was to buy the witness a train ticket and send him out of town for a while. For an excellent movie where this forms a small part of the plot, watch The GlassKey (1942, starring Brian Donlevy, Alan Ladd and Veronica Lake, with a very memorable performance by William Bendix), about back-room political operators where the operators are actually the good guys! It appears that Novak has been sent out of town to keep him away while Miller takes the heat. Why is Miller on the spot rather than Novak? She makes a far more dangerous precedent. All she did was pick up the phone and listen to an informant. Novak actually created the story. If Novak is in contempt of court, the precedent set could be limited by the specific facts of his very extensive involvement. If it is Miller, the precedent could arguably extend to any journalist receiving an unsolicited communication from an informant who wishes to remain anonymous. The fact that Miller, almost an innocent bystander, is the victim of this legal attack, while Novak, the obvious culprit, is not only not under attack but is out of town with a strange excuse for his continued absence, makes me believe this is a set up to create a precedent to chop away at the First Amendment and the ability of whistleblowers to whistleblow. As Miller is so hated, the hope of the conspirators is that people will give up the First Amendment in order to see Miller in jail. This is a dumb trade-off.